THIS
CAUSE is before the Court on Defendants' Motion to
Dismiss Counts I, II, V, and VI of the Amended Complaint and
for Dismissal of Defendant John W. Kelly as a party to the
action. [Dkt. 19.] The Court has carefully considered the
motion, response and reply, and it otherwise fully advised in
the premises. For the reasons explained below, the Court
grants Defendants' Motion to Dismiss. The Court further
provides Plaintiff with an opportunity to amend his Amended
Complaint as to Count V.

In the
Amended Complaint, Plaintiff Chunxue Wang ("Plaintiff or
"Wang, " who also goes by the name "Victor
C.X. Wang" [Dkt. 17, 5]) sues Florida Atlantic
University ("FAU"), a state university, and four of
its senior officials for claims related to his alleged
unlawful compensation, suspension, and ultimate discharge
from employment at FAU. The four officials that Wang names in
his Amended Complaint are: (1) John W. Kelly, Ph.D., in his
official capacity as President of FAU; (2) Valerie J.
Bristor, Ph.D., Dean of FAU's College of Education; (3)
Robert Shockley, Ph.D., Chair of FAU's Department of
Educational Leadership and Research Methodology
("ELRM"); and (4) Michele W. Hawkins, Ph.D., who
was an Associate Provost at the time of Plaintiff s discharge
but is now FAU's Vice Provost. [Dkt. 17, 13-16; 21, 47;
see Dkt. 19 n. 2 (updating Hawkins's position for the
Court).]

As
relevant to the Defendants' Motion to Dismiss, Wang seeks
relief against FAU pursuant to the Florida Civil Rights Act
("FCRA") (Counts I and II), and relief against
Defendants FAU, Bristor, Shockley, and Hawkins pursuant to 42
U.S.C. § 1983 (Counts V and VI). FAU has not sought to
dismiss Wang's claims against FAU pursuant to Title VII
of the Civil Rights Act of 1964 (Counts III and IV).

I.
Background

As
recounted in the Amended Complaint, Wang is a Chinese citizen
and permanent resident of the United States. [Dkt. 17, ¶
19.] He joined the faculty of FAU in 2011 as a tenured
Professor in FAU's College of Education, and was
terminated on or about May 24, 2016. [Id.,
¶¶ 20-21, 47.]

Beginning
in August 2014, FAU began to receive anonymous emails which
contained discriminatory statements regarding the age and
sexual orientation of certain FAU faculty members and
complaints regarding salary inequity between senior and newly
hired faculty members.[1][Id., ¶ 25; Dkt. 19-2 at
00003-00004.] The author of these anonymous emails
consistently referred to him/herself as "Mr. Joe"
or "B Russel, " [Dkt. 19-2 at 00004], and
Wang's Amended Complaint alleges that these emails
originated from a computer located in Indonesia. [Dkt. 17,
¶25.]

On
April 2, 2015, FAU's Office of Equity, Inclusion, and
Compliance ("EIC") commenced an investigation into
these emails. EIC did so on the basis of faculty members'
complaints that the emails were "deliberately malicious,
anonymous and attempted to smear many faculty member's
personal and professional reputations by describing a litany
of unsubstantiated and untrue accusations about the ELRM
(Department of Educational Leadership and Research
Methodology)." [Dkt. 19-2 at 00005.] FAU's
investigation involved interviews with approximately 23
individuals and culminated in a published, written
investigative report. [Id. at 00004.] The
investigative report details that, "[d]uring the course
of the investigation, " the "EIC met with a number
of faculty members who believed Dr. Victor Wang is involved
in the anonymous emails." [Id. at 00005.] The
report notes that the faculty members connected Dr. Wang with
the emails because of "reference[s] [to] a number of
issues raised by Dr. Wang in personal communication which
were also mentioned in the anonymous emails."
[Id.] For example, the investigative report notes
that "[o]n more than one occasion, Dr. Wang called
members of the ELRM at home or on their cellphones to
complain about his salary ... In his verbal communications,
Dr. Wang cited the fact that a number of faculty members were
paid more than him but produced less scholarly work."
[Id.] Similarly, one of the "priority
issues" raised in the anonymous emails was "pay
equity allegations of lower salaries for newly hired the
report explains that "Administrators who were
interviewed also stated the language used in the anonymous
email was very similar to language used by Dr. Wang.
Specifically, Dr. Wang routinely used phrases referring to
the power of particular leadership and praising them for
making changes." [Id. at 00005.]

Based
on the EIC's review of both interview testimony and
documentation-including "personal and work related
emails, and other documents submitted to EIC" regarding
Wang-the report concluded that a preponderance of the
evidence supports the conclusion that "it is more likely
than not Dr. Wang was the author or at least involved in the
anonymous emails sent to various members of the University
community that contained discriminatory remarks."
[Id. at 00007.] One example of this cited in the
investigative report is that, "[i]n an email to the Dean
of the [College of Education], Dr. Wang references two
faculty members voting against him for tenure. In the email,
Dr. Wang refers to them as 'extremely senior' faculty
members referring to Bogotch and Pisapia." [Id.
at 00006.] "In one of the anonymous emails, "
likewise, "the sender refers to the ages of both faculty
members mentioned in the email to the Dean, stating they
should retire." [Id.] As another example
correlating the anonymous emails to Dr. Wang, the report
states:

In a personal email sent to another faculty member on April,
6, 2015, Dr. Wang stated "most students enjoy working
with regular faculty. I had a horrible time, working with
those gays and lesbians in CA. I don't mind working with
them, but don't like them introducing their partners to
colleagues and students . . . And their sex life is so
filthy." In the anonymous emails, the sender states that
"in Florida you cannot allow people with any particular
sexual orientation to be "role models" to educate
and train the next generation of workforce in higher
education or related fields. You already have one and you
don't need more from the same place. It's called
Iowa. This new faculty already has expressed his disdain at
the ranking and status of FAU as a research university at
several faculty meetings. Why hire people of this kind?"
(April 6, 2015).

[Id.] Considering the evidence presented by the
investigation, the report concludes that "Dr. Wang and
the sender (1) used similar language, (2) repeatedly made
reference to salary inequities in the ELRM, (3) both cited
the same erroneous salary figures in the emails and the EIC
complaint, (4) both cited the same erroneous ages in emails
and the EIC complaint, (5) both cited issues with the ages of
various faculty members in the ELRM, and (6) both referenced
having issues with working with individuals of particular
sexual orientations." [Id.] "Further,
" the report adds, the "EIC received information
from an individual who stated the same thing occurred at
another University when Dr. Wang was a member of the
faculty." [Id.] A copy of the investigative
report was sent to the Dean of the College of Education and
the Vice Provost for follow-up, [id.], and Wang
contested the finding of the report by letter on July 28,
2015 [Dkt. 19-3]. On August 28, 2015, FAU sent Wang a notice
of proposed disciplinary action, referencing Wang's
"written response to the EIC report, " but noting
that in his response he "admitt[ed] to sending the email
and making the discriminatory statements" based on
sexual orientation. [Dkt. 19-4.] FAU therefore provided
notice to Wang that it was suspending him for five days
without pay and required him to attend an
Anti-Discrimination/Anti-Harassment workshop. [Id.]
Wang's Amended Complaint asserts that he "did not
have anything to do with the emails, " and that
"FAU's conclusion that Wang sent the emails or knew
who sent the emails was discriminatory." [Dkt. 17,
¶¶ 27, 30.] "FAU concluded that since Wang was
Asian, and 'Joe' is from an Asian country, "
Wang alleges, "then it was either Wang who sent the
emails or someone that he knows from Indonesia."
[Id., ¶ 28.] He adds that "FAU reached
this conclusion because other professors at FAU opined that
the dialect used by Wang and the dialect used in the
anonymous emails is similar, essentially that Asians sound
similar." [Id., ¶ 29.]

Wang
also asserts that he "learned that he was being paid
considerably less than all of the other non-Chinese tenured
professors, " noting that he sent a letter on March 12,
2015, "complaining about his pay disparity" and
alleging that "Wang earned approximately nineteen
thousand dollars, ($19, 000.00), less than the next lowest
paid tenured Professor." [Id. ¶¶
37-38, 40.] The March 12, 2015 letter includes a statement
noting that Wang "fail[s] to see why Dr. Laanan, a newly
hired Asian faculty, came in at $35, 307 above [his] current
salary." [Dkt. 19-1 at 00029.]

Based
on Wang's "objection to the false accusations
regarding the anonymous emails, and the complaint about the
pay disparity, " the Amended Complaint alleges that
"Wang was subjected to relentless acts of retaliation by
FAU." [Dkt. 17, ¶ 41.] These retaliatory acts, as
alleged in the Amended Complaint, included a "recent
evaluation for Wang as a 'C, '" a "proposed
disciplinary action of a 5 day suspension without pay, "
and the requirement that he "attend
workshops"[1] and "apologize to professors for
sending emails that he did not send." [Id.,
¶¶ 42-44.] Wang alleges that these "new acts
of bigotry and discrimination further harmed Wang."
[Id.¶45.]

Wang
received a letter from FAU on May 24, 2016, terminating his
employment at FAU. [Dkt. 19-9.] On ...

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